New York Marriage Bill Suffers From Procedural Infirmities

William Duncan, Director of the Marriage Law Foundation, argues that whether or not same-sex marriage is a beneficial public policy, the New York legislation sets a bad precedent and is possibly unconstitutional under the state constitution due to violations of procedural requirements...

Putting aside the merits of the recently enacted law creating same-sex marriage in New York, the way it was approved raises some important legal questions; specifically about the application of two constitutional provisions to the unconventional process of the amendment's passage in the Senate.

No bill shall be passed or become a law unless it shall have been printed and upon the desks of the members, in its final form, at least three calendar legislative days prior to its final passage, unless the governor, or the acting governor, shall have certified, under his or her hand and the seal of the state, the facts which in his or her opinion necessitate an immediate vote thereon.

Not only was Assembly Bill 8520 not available 72 hours before the vote last Friday, it was not public until earlier that same day. Of course, proponents claim this procedure was "necessary" but wanting to get a favored bill passed quickly does not seem to be the type of "necessity" contemplated by the Constitution. The New York Court of Appeals explained this constitutional requirement in Schneider v. Rockefeller: "The clear purpose of this provision is to prevent hasty and careless legislation, to prohibit amendments at the last moment, and to insure that the proposed legislation receives adequate publicity and consideration." It may be that courts will not want to examine the sufficiency of the governor's determination of necessity, but that should not insulate the determination from public criticism and debate. The governor's certification of the reasons for the quick procedure should be made readily available immediately.

Second, Article III, section 10 requires: "The doors of each house shall be kept open, except when the public welfare shall require secrecy." Senator Kevin Parker revealed after the vote that the members were locked in the chamber. It is possible, of course, to read the open door requirement as merely an openness provision that would be met by televising the proceedings, but it is troubling that this part of the Constitution was not more carefully adhered to. The requirement of openness was more blatantly violated in other instances. The story reporting on Senator Parker also explained: "Bill Mahoney of the New York Public Interest Research Group was told by two state troopers that the public was not allowed into committee meetings. Mahoney informed them that this was illegal and they responded they were just following orders."

Other procedural irregularities, such as the failure to allow senators to speak to the bill or to allow the bill to be laid aside for debate are also relevant to this discussion. It has been reported that the governor was anxious for a quick resolution in order to allow the vote to be reported on the 11 o'clock news. This may be a politically savvy course but it does not necessarily comport with the law and these questions ought to get more attention and the actions of the governor and his Senate supporters deserves scrutiny.

At the very least, the procedure for passage of same-sex marriage in the New York Senate contravenes the principles underlying the constitutional provisions noted above. Those provisions attempt to secure an open, transparent and deliberative process. By contrast, the procedure followed to get the same-sex marriage bill through as quickly as possible was characterized by secrecy, curtailed discussion and top-down control. The important changes to the bill's religious exemption were not only not explored at any length, but the attempt of Senator Ruben Diaz to ask questions about these provisions (which had only become public a few hours before) was completely foreclosed.

However one comes down on whether same-sex marriage is good public policy, its passage in New York clearly sets a bad precedent, perhaps rendering its enactment illegal.

William Duncan formerly served as acting director of the Marriage Law Project at the Catholic University of America Columbus School of Law and as executive director of the Marriage and Family Law Research Grant at Brigham Young University J. Reuben Clark Law School, where he was also a visiting professor.